Pelayo v. State

          REPORT AND RECOMMENDATION

          LESLIE A. BOWMAN UNITED STATES MAGISTRATE JUDGE

         Pending before the court is an amended petition for writ of habeas corpus filed in this court on June 4, 2018, by Manuel Jose Pelayo, an inmate currently held in the Arizona State Prison Complex in Florence, Arizona. (Doc. 5)

         Pursuant to the Rules of Practice of this court, the matter was referred to Magistrate Judge Bowman for report and recommendation. LRCiv 72.2(a)(2).

         The Magistrate Judge recommends that the District Court, after its independent review of the record, enter an order denying the petition. All of Pelayo's claims are procedurally defaulted.

         Summary of the Case

         Pelayo was convicted after a jury trial of two counts of Aggravated Driving While Under the Influence of Intoxicating Liquor. (Doc. 12-1, p. 15) The state presented evidence at trial that Pelayo drove his friend's Dodge through a red light and hit a white truck while under the influence of alcohol. (Doc. 12-2, pp. 92-93) Pelayo was arrested at the scene, despite his statements that he did not know what happened and was not driving. (Doc. 12-2, pp. 26-27)

         After he was found guilty on both counts, a second trial was held to determine prior felony convictions. (Doc. 12-2, p. 93) At that trial, it was established that Pelayo previously had been convicted of DUI (driving while under the influence) offenses in 1999, 2000, and 2002. (Doc. 12-2, p. 93) The trial court sentenced Pelayo to two concurrent 10-year terms of imprisonment. (Doc. 12-1, p. 20)

         On direct appeal, appellate counsel reported that he was unable to find any colorable issues. (Doc. 12-1, p. 62) Pelayo was permitted to file a pro se supplemental brief in which he argued generally that trial counsel and appellate counsel were ineffective and the court should review the record for fundamental error. (Doc. 12-2, pp. 2-18) The Arizona Court of Appeals refused to address the ineffective assistance claims because the Arizona Rules of Criminal Procedure require that they be brought in a post-conviction relief proceeding. (Doc. 12-2, p. 27) The court examined the record for reversible error and found none. (Doc. 12-2, p. 28)

         Pelayo filed notice of post-conviction relief on June 8, 2015. (Doc. 12-2, p. 32) After the court granted Pelayo's motion that appointed counsel be dismissed, he filed a petition pro se on February 16, 2016. (Doc. 12-2, p. 42); (Doc. 12-2, p. 44) He argued that (1) the trial court erred by not granting a mistrial when Officer Powers gave testimony that was subsequently stricken by the court as hearsay, which tended to prove that Pelayo was the driver of the car that caused the accident, (2) appellate counsel was ineffective in her handling of the mistrial issue, (3) the state failed to prove he was the driver of the car that caused the accident, and (4) appellate counsel was ineffective for failing to raise this issue too. (Doc. 12-2, pp. 44-55) The trial court denied the petition explaining that a mistrial was unnecessary because the testimony was stricken from the record and the jury was given a curative instruction. (Doc. 12-2, p. 104) In his petition for review, Pelayo claimed (1) the trial court erred by not granting a mistrial, (2) the state did not prove that Pelayo was the driver, and (3) appellate counsel failed to raise these two issues. (Doc. 12-2, pp. 109-118) The Arizona Court of Appeals granted review but denied relief on October 10, 2017. (Doc. 12-2, pp. 158-159)

         Pelayo filed a petition for writ of habeas corpus in this court on April 30, 2018. (Doc. 1) He filed an amended petition on June 4, 2018. (Doc. 5) In that petition, he claims that (1)

         the jury was improperly instructed, the trial court did not correct errors, the trial court improperly allowed prior convictions to affect the sentence, witnesses were not made available, and evidence was suppressed; (2) the blood samples were improperly tested, the arresting officer falsified witness statements, and the state withheld and suppressed evidence; (3) trial counsel was improperly prepared and the court interfered with defense counsel's ability to present a defense; and (4) the jury was prejudiced by the Willits^[1] instruction given after they were exposed to hearsay testimony and the jury was denied the ability to ask questions. (Doc. 5) He states in his amended petition that all of his issues were raised on direct appeal. Id.

         The respondents filed an answer on September 18, 2018 in which they argue that all of Pelayo's claims are procedurally defaulted. (Doc. 12)

         This court subsequently issued an order setting a deadline for Pelayo to file a reply and further instructing him that

any assertions in the reply that Petitioner's claims were fairly presented to the state appellate courts shall be supported by specific references to the location of the presentation of the claim, i.e. by document name, date of filing with the state court, exhibit number/letter in the record of this proceeding, page(s)/ line number(s) ...